Current Status Introducing Body:House Bill Number:4442 Primary Sponsor:M.O. Alexander Committee Number:25 Type of Legislation:GB Subject:Responsible Property Transfer Act of 1992 Residing Body:House Current Committee:Judiciary Computer Document Number:NO5/8080.BD Introduced Date:Feb 25, 1992 Last History Body:House Last History Date:Feb 25, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:M.O. Alexander G. Bailey Mattos Wells Keegan McElveen Anderson Manly Type of Legislation:General Bill
Bill Body Date Action Description CMN
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4442 House Feb 25, 1992 Introduced, read first time, 25
referred to Committee
View additional legislative information at the LPITS web site.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 10 TO TITLE 27 SO AS TO PROVIDE FOR THE RESPONSIBLE PROPERTY TRANSFER ACT OF 1992 TO ENSURE THAT PARTIES TO A REAL ESTATE TRANSACTION ARE ADVISED OF THE ENVIRONMENTAL CONDITION OF THE PROPERTY.
Whereas, the purpose of this act is to ensure that parties involved in certain real estate transactions are made aware of the existing environmental liabilities associated with ownership of the properties as well as the past use and environmental status of the properties; and
Whereas, the General Assembly intends by this act to ensure that the interest of the people of South Carolina is protected by providing a mechanism to advise parties to a real estate transaction of the environmental condition of the property and to encourage responsible action to fulfill the purpose and intent of existing environmental laws. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 27 of the 1976 Code is amended by adding:
Section 27-10-10. This chapter may be cited as the Responsible Property Transfer Act of 1992.
Section 27-10-20. As used in this chapter:
(1) `Disclosure document' means a document containing the information prescribed in Section 27-10-40 and used to communicate information between the parties to a real property transaction.
(2) `Facility' means all buildings, equipment, structures, and other stationary items located on a single site.
(3) `Lender' means a financial institution, an insurance company, a corporation, a partnership, a person, or other entity which advances funds secured by an interest in real property.
(4) `Parties to the real property transfer' means, as applicable, the transferor, transferee, and lender.
(5) `Real property' means a specific and identifiable parcel of land including improvements on the land located within South Carolina which is not subject to bonding or other financial assurances released by the appropriate governmental agency after compliance with applicable state environmental laws and which:
(a) contains one or more facilities subject to reporting under Section 312 of the federal Emergency Planning and Community Right-to-Know Act of 1986, and related federal regulations; or
(b) has underground storage tanks which require registration with the State Fire Marshal.
(6) `Specific and identifiable parcel of land' means a portion of real property containing facilities which may be identified by the address provided on reporting forms used to report under Section 312 of the federal Emergency Planning and Community Right-to-Know Act of 1986, and related federal regulations, or by boundary lines provided on the property's applicable permit applications. If only a portion of a real property is transferred this chapter only applies to the portion actually transferred.
(7)(a) `Transfer' means a conveyance of an interest in real property by:
(i) deed or other instrument of conveyance; or
(ii) lease of real property whose terms, when considering all options which may be exercised, exceeds forty years.
(b) `Transfer' does not include:
(i) deeds or trust documents which, without additional consideration, confirm, correct, modify, or supplement a deed or trust document previously recorded;
(ii) tax deeds;
(iii) deeds or trust documents of release of property which is security for a debt or other obligation;
(iv) deeds of partition;
(v) conveyances occurring as a result of a foreclosure of a mortgage or other lien on real property;
(vi) easements;
(vii) conveyances of an interest in minerals, oil, or gas.
(8) `Transferee' means a buyer, mortgagee, grantee, or lessee of real property.
(9) `Transferor' means a seller, grantor, mortgagor, or lessor of real property.
Section 27-10-30. (A) For transfers of real property subject to this chapter the transferor, within thirty days following execution of a written contract, if any, for the transfer of the property, but not later than thirty days before the transfer, shall deliver to the transferee, if any, and to the lender, if any, a disclosure document. The disclosure document must be in the form and contain the information required in Section 27-10-40.
(B) The parties to the transfer of real property subject to this chapter may waive the time period specified in subsection (A) if all parties indicate in writing they are aware of the purpose and intent of the disclosure document. Notwithstanding the waiver provision in this subsection the disclosure document must be delivered to all parties to the real property transfer on or before the date of transfer of the real property.
(C) If the disclosure document reveals environmental defects in the real property which previously were unknown to the parties to the real property transfer or if the transferor fails to comply with subsection (A) and fails to obtain a waiver and provide the disclosure provided in subsection (B), any of the parties to the real property transfer, at their discretion within ten days after demand for or receipt of the disclosure statement, may void an obligation to accept a transfer or finance a transfer which has not been closed or finalized.
Section 27-10-40. The disclosure document required under Section 27-10-30 must be in the following form:
For use by County Register of Mesne Conveyance or Clerk of Court
County:
Date:
Doc. No.:
Received by:
The following information is provided pursuant to the Responsible Property Transfer Act of 1992.
(1) Property identification:
Address of property: __________________________
Street and City
Tax map no: ___________________________
Legal description as it appears on the deed:
__________________________________________________
Property characteristics:
Lot size: ________________________________________
Acreage: _________________________________________
Check all types of improvement and uses that pertain to the property:
____ apartment building, six units or less
____ commercial apartment, more than six units
____ store, office, or commercial building
____ industrial building
____ farm, with buildings
____ other and specify
(2) Liability disclosure:
Transferors and transferees of real property are advised that their ownership or other control of property may render them liable for environmental clean-up costs whether or not they caused or contributed to the presence of environmental problems associated with the property.
(3) Nature of Transfer:
(a)(i) Transfer by deed or other instrument of conveyance? Yes ___ No ___
(ii) Lease exceeding a term of forty years? Yes ___ No ___
(iii) Mortgage or collateral assignment of beneficial interest? Yes ___ No ___
(b)(i) Identify Transferor: ____________________
___________________________________________________
Name and Current Address of Transferor: ___________
___________________________________________________
(ii) Identify the person who has completed this form on behalf of the transferor and who has knowledge of the information contained in this form:
___________________________________________________
Name, position, if any, address, and telephone no.
(c) Identify transferee:________________________
___________________________________________________
Name and Current Address of Transferee
(4) Environmental Information
(a) Regulatory information during current ownership:
(i) Has the transferor conducted operations on the property which involved the generation, manufacture, processing, transportation, treatment, storage, or handling of hazardous substances? This question is not applicable for consumer goods stored or handled by a retailer in the same form, approximate amount, concentration, and manner as they are sold to consumers if the retailer does not engage in commercial mixing, other than paint mixing or tinting of consumer sized containers, finishing, refinishing, servicing, or cleaning operations on the property.
Yes ____ No ____
(ii) Has the transferor ever conducted operations on the property which involved the processing, storage, or handling of petroleum other than that which was associated directly with the transferor's vehicle usage?
Yes ____ No ____
(iii) Has the transferor ever conducted operations on the property which involved the generation, transportation, storage, treatment, or disposal of `hazardous or special wastes'?
Yes ____ No ____
(iv) Are there any of the following specific units, operating or closed, at the property which are or were used by the transferor to manage waste, hazardous wastes, hazardous substances, or petroleum?
Yes No
a. landfill: ___ ___
b. surface impoundment: ___ ___
c. land treatment: ___ ___
d. waste pile: ___ ___
e. incinerator: ___ ___
f. storage tank above ground: ___ ___
g. storage tank underground: ___ ___
h. container storage area: ___ ___
i. injection wells: ___ ___
j. wastewater treatment units: ___ ___
k. septic tanks: ___ ___
l. transfer stations: ___ ___
m. waste recycling operations: ___ ___
n. waste treatment detoxification: ___ ___
o. other land disposal area: ___ ___
If there are `yes' answers to one or more of the above items and the transfer is other than a mortgage or collateral assignment of beneficial interest, attach a site plan which identifies the location of each unit. The site plan must be filed with the South Carolina Department of Health and Environmental Control with this disclosure document.
(v) Has the transferor every held one or more of the following in regard to this real property?
a. Permits for discharges of wastewater to waters of the State: Yes ___ No ___
b. Permits for emissions to the atmosphere: Yes ___ No ___
c. Permits for waste storage, waste treatment, or waste disposal operation: Yes ___ No ___
(vi) Has the transferor had wastewater discharges, other than sewage, to a publicly owned treatment works? Yes ___ No ___
(vii) Has the transferor taken one or more of the following actions relative to this property?
a. Filed an emergency and hazardous chemical inventory form pursuant to the federal Emergency Planning and Community Right-to-Know Act of 1986: Yes ___ No ___
b. Filed a toxic chemical release form pursuant to the federal Emergency Planning and Community Right-to-Know Act of 1986:
Yes ___ No ___
(viii) Has the transferor, a facility on the property, or the property been the subject of one or more of the following state or federal governmental actions?
a. Written notification regarding known, suspected, or alleged contamination on or emanating from the property: Yes ___ No ___
b. Filing an environmental enforcement case with a court for which a final order or consent decree was entered: Yes ___ No ___
If `yes' indicate whether or not the final order or decree is still in effect for this property.
Yes ___ No ___
(ix) Environmental Releases During Transferor's Ownership:
a. Has a situation occurred at this site which resulted in a reportable `release' of hazardous substances or petroleum as required under state or federal laws? Yes ___ No ___
b. Have released hazardous substances or petroleum come into direct contact with the ground at this site? Yes ___ No ___
c. If the answers to questions a. and b. are `yes', have one or more of the following actions or events been associated with a release on the property?
(i) Use of a cleanup contractor to remove or treat materials including soils, pavement, or other surficial materials: Yes ___ No ___
(ii) Assignment of in-house maintenance staff to remove or treat materials including soils, pavement, or other surficial materials:
Yes ___ No ___
(iii) Sampling and analysis of soils:
Yes ___ No ___
(iv) Temporary or more long-term monitoring of groundwater at or near the site:
Yes ___ No ___
(v) Impaired usage of an on-site or nearby water well because of offensive characteristics of the water: Yes ___ No ___
(vi) Coping with fumes from subsurface storm drains, inside basements, or other areas:
Yes ___ No ___
(vii) Signs of substances leaching out of the ground along the base of slopes or at other low points on or immediately adjacent to the site:
Yes ___ No ___
Is an explanation needed for clarification of the above answers or responses?
__________________________________________________
__________________________________________________
(b) Site information under other ownership or operation:
(i) Provide the following information about the previous owner or the entity or person the transferor leased the site to or otherwise contracted with for the management of the site or real property:
a. Name: _______________________________
b. Type of business or property usage:
__________________________________________________
(ii) If the transferor has knowledge, indicate whether the following existed under prior ownerships, leaseholds granted by the transferor, or other contracts for management or use of the facilities or real property:
Yes No
a. landfill: ___ ___
b. surface impoundment: ___ ___
c. land treatment: ___ ___
d. waste pile: ___ ___
e. incinerator: ___ ___
f. storage tank above ground: ___ ___
g. storage tank underground: ___ ___
h. container storage area: ___ ___
i. injection wells: ___ ___
j. wastewater treatment units: ___ ___
k. septic tanks: ___ ___
l. transfer stations: ___ ___
m. waste recycling operations: ___ ___
n. waste treatment detoxification: ___ ___
o. other land disposal area: ___ ___
(5) Certification:
(a) Based on my inquiry of those persons directly responsible for gathering the information, I certify that the information submitted is, to the best of my knowledge and belief, true and accurate.
___________________________
Transferor
or on behalf of transferor
(b) This form was delivered to me with all elements completed on __________________, 19 ___.
___________________________
Transferee
or on behalf of transferor
(c) This form was delivered to me with all elements completed on __________________, 19 ___.
___________________________
Lender
Section 27-10-50. Within thirty days after the date real property subject to this chapter is transferred, the disclosure document must be recorded in the office of the register of mesne conveyances or clerk of court of the county in which the property is located and filed with the Department of Health and Environmental Control. Responsibility for the recordation rests equally upon the transferor and the transferee of the property. The recorded disclosure statement must be available for public inspection and reproduction under the same conditions as other documents so recorded.
Section 27-10-60. (A) A person failing to comply with Section 27-10-30 is liable for civil penalties not to exceed one thousand dollars for each violation and one thousand dollars for each day violations continue.
(B) A person or transferor who with actual knowledge makes a false statement, representation, or certification under Section 27-10-40 is liable for civil penalties not to exceed ten thousand dollars for each violation and ten thousand dollars for each day violations continue.
(C) A person who fails to record a disclosure document as required under Section 27-10-50 is jointly and severally liable for civil penalties not to exceed ten thousand dollars. If a party to a real property transfer is in violation of Section 27-10-30, there is no cause of action against the transferee under Section 27-10-50.
(D) The solicitor of the county in which the violation occurred or the Attorney General, at the request of the Department of Health and Environmental Control or a citizen of that county or on his own motion, may institute a civil action in a court of competent jurisdiction to recover penalties and to compel compliance with this chapter.
(E) A person who suffers damage by reason of a violation of this chapter may bring action. The court, in its discretion, may award actual damages or other relief the court considers proper. In an action, in addition to the relief provided in this section, the court may award reasonable attorneys' fees and costs to the prevailing party. However, no action may be taken against the transferee for failure to comply with Section 27-10-50 if a party to a real property transfer is in violation of Section 27-10-30."
SECTION 2. Chapter 10, Title 27 of the 1976 Code applies to transfers of property after December, 1994.
SECTION 3. This act takes effect upon approval by the Governor.